Why Texas Hasn't Drug Tested a Single Person Since Law's Passage in 2013

Nearly three years after Texas lawmakers passed a law requiring some applicants for unemployment benefits to pass a drug test, the state has yet to test a single applicant, and it remains unclear when the program will get going.

The Texas Workforce Commission, the state agency tasked with implementing Senate Bill 21, is still waiting on guidance from the U.S. Department of Labor to designate which occupations will be subject to testing. When he signed the bill in 2013, then-Gov. Rick Perry predicted it would prevent people from abusing the program.

“The message is strong,” Perry said at the bill signing. “If you’ve got a drug problem, there are ways that we can help you get that licked, but we’re not going to entice individuals to not be responsible.”

A federal law passed in 2012 allowed states to drug test certain people who apply for unemployment benefits. But Texas isn't legally allowed to draft guidelines for the program until it receives direction from the Labor Department, which must outline the occupations that fall under the drug testing requirement in the federal law.

A 2015 online posting by the Office of Management and Budget indicated that the "Final Rule" for the regulations related to the 2012 law was scheduled to be issued this month.

Juan Rodriguez, a Labor Department spokesman based in Dallas, said Wednesday he could not speak to the department's timeline in the posting. He confirmed in an email that the rule had not yet been issued, “but it is on track for later this year.”

When pressed for more specifics on the timeline or the cause of the delay, Rodriguez said, “We are not in a position to answer your questions until the rule is issued.”

The projections for when Texas and states such as Kansas and Mississippi that passed similar laws could expect to get the information needed to proceed have changed over time. Back in April 2014, a Department of Labor spokesman said the rule was at least three months away from becoming final.

Two years later, business leaders are skeptical the law will ever fully take effect under the current administration.

“They just simply don’t want to do it, and that’s why they’re dragging their feet,” Texas Association of Business president Bill Hammond said. “We’ve seen this repeatedly with the Obama Administration in terms of using administrative authority in a way that thwarts the will of Congress.”

Hammond, who testified in support of the bill in 2013, called its delay “unfair” for the employers who pay the full cost of unemployment insurance and said it goes against the “basic tenets” that recipients remain ready and available to take a job.

Critics say such laws are a waste of time and taxpayer dollars. Hammond admitted that there’s no direct proof that laid-off workers seeking benefits are any more likely to use drugs than any other group.

“We do have a lot of evidence that a lot of applicants cannot pass a drug test,” Hammond said. “Therefore, it’s likely that some of them are receiving unemployment benefits.”

In the meantime, staff at the Texas Workforce Commission continues to do what preliminary work it can to prepare for the program's launch, according to spokeswoman Lisa Givens. That includes researching tools to administer the written drug screening requirement and looking into what contracts would be needed to carry out the drug testing.

Only once they receive guidance from the Labor Department can the commission begin to decide which occupations Texas will subject to drug testing and how exactly the program will be administered.

Once the law is implemented, a positive drug test would render a person ineligible for unemployment benefits for at least a month, and then only after they pass a subsequent drug test. Within a week of receiving notice of a failed drug test, an applicant can enroll in a treatment program to remain eligible for benefits.

The law includes exceptions for positive drug tests if the Workforce Commission determines that a physician prescribed the substance found in the test or learns that the applicant is enrolled in a drug abuse treatment program.

Disclosure: The Texas Association of Business is a corporate sponsor of The Texas Tribune.